ALLSTATE INSURANCE COMPANY, AN ILLINOIS CORPORATION, ALLSTATE INDEMNITY COMPANY, AN ILLINOIS CORPORATION, DEERBROOK INSURANCE COMPANY, AN ILLINOIS CORPORATION, AND NORTHBROOK INDEMNITY COMPANY, AN ILLINOIS CORPORATION, PETITIONERS,
v.
TOTAL REHAB AND MEDICAL CENTERS, INC., PROSPER DIAGNOSTIC CENTERS, INC., AND FAMILY MEDICAL AND REHAB CENTERS, INC., RESPONDENTS

Fla. 4th DCA | 2013-03-13
No. 4D12-3095
WARNER, POLEN and DAMOORGIAN, JJ„ concur.
123 So. 3d 1162 Florida District Court of Appeal, Fourth District (2013) Positive Treatment
Cited by 7 cases

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Synopsis

Allstate Insurance companies sought a writ of certiorari to block depositions of their attorneys who created a trial exhibit summary. The court denied the petition, holding that while attorneys are not per se exempt from deposition under Florida Rule of Civil Procedure 1.810(a), trial courts retain authority to protect privileged materials.


Holding

The court held that attorneys are not per se exempt from deposition under Florida Rule of Civil Procedure 1.810(a), and a trial court's order permitting such depositions does not depart from the essential requirements of law when the trial court retains authority under Rule 1.310(c)(d) to prohibit inquiry into genuinely privileged materials.


Headnotes

[1] A party seeking a writ of certiorari must demonstrate both irreparable harm and a departure from the essential requirements of the law.

[2] Deposing an opposing party's attorney is not per se prohibited, even if it potentially implicates attorney-client or work-product privileges.

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Key Quotes

“attorneys are not per se exempt from the reach of Florida Rule of Civil Procedure 1.810(a), which allows the taking of the deposition of any person”

Establishes the core holding that attorneys cannot claim blanket immunity from depositions.

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Facts & Procedural History

Petitioners filed suit against medical and rehabilitation centers for monetary damages. During pretrial, two Petitioners' attorneys created a master s…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioners, Allstate Insurance Company, Allstate Indemnity Company, Deer-brook Insurance Company, and North-brook Indemnity Company (hereinafter “Petitioners”), filed suit in Palm Beach circuit court seeking monetary damages from Total Rehab and Medical Centers, Inc., Prosper Diagnostic Center, Inc., and Family Medical and Rehab Centers, Inc. (hereinafter “Respondents”). During the pretrial stage, two attorneys working for Petitioners created a master summary chart (“MSC”) to be used as a trial exhibit. The MSC consisted of a combination of personal injury protection files generated by Petitioners, and medical and billing charts generated by Respondents. Over Respondents’ objection, MSC was introduced into evidence as a summary based on section 90.956, Florida Statutes (2004). However, the trial was terminated before judgment when a mistrial was declared by the trial court.

Prior to retrial, Respondents filed a motion to take the depositions of Petitioners’ attorneys who created the MSC. After conducting a hearing, the trial court granted the motion, finding that because the attorneys were “interject[ed] into this case by [their] creation of a critical trial exhibit,” Respondents were “permitted to question the accuracy and methodology used for creation of the [MSC].” From this order, Petitioners seek certiorari review, contending that the trial court’s order departed from the essential requirements of the law to the irreparable material detriment of Petitioners because deposing an opposing party’s attorney interferes with the attorney-client and work product privileges. We deny the petition on the merits.

To be entitled to a writ of certio-rari, a party must demonstrate both irreparable harm, further defined as a material injury that cannot be remedied on plenary review, and a departure from the essential requirements of the law. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla.2012). We believe Petitioners have shown irreparable harm not correctable on direct appeal as the result of the trial court’s order, as the order allows for discovery potentially protected by attorney-client or work-product privileges due to questioning of the two named attorneys who created the MSC trial exhibit. See generally 1620 Health Partners, L.C., d/b/a NHC Healthcare v. Fluitt, 830 So.2d 935, 937 (Fla. 4th DCA 2002); see also The Haskell Co. v. Georgia Pac. Corp., 684 So.2d 297, 298 (Fla. 5th DCA 1996).

However, Petitioners have failed to show that the trial court’s order departed from the essential requirements of the law. While it is true that the attempt to depose *1164a party’s attorney during ongoing litigation has been rejected when irrelevant or privileged information was sought from the attorney, attorneys are not per se exempt from the reach of Florida Rule of Civil Procedure 1.810(a), which allows the taking of the deposition of any person. See Marbulk Shipping, Inc. v. Bhagat, 948 So.2d 931, 932 (Fla. 3d DCA 2007); Somarriba v. Ali, 941 So.2d 526, 528, n. 1 (Fla. 3d DCA 2006); Young, Stern, & Tannenbaum, P.A. v. Smith, 416 So.2d 4, 5 (Fla. 3d DCA 1982). As the trial court retains authority under Rule 1.310(c)(d) to prohibit inquiry of genuinely privileged materials, we cannot say the order appealed from departs from the essential requirements of the law, a prerequisite to certiorari relief. See Marbulk Shipping, 948 So.2d at 932. Compare Northup v. Acken, 865 So.2d 1267, 1270-72 (Fla.2004) (evidence reasonably expected to be introduced at trial not protected by work product privilege).

While we recognize the potential for abuse of the process of deposing the opposing party’s attorney during ongoing litigation, we are confident trial courts in this district will use their powers of supervision over discovery to prevent privileged information from being disclosed.

Petition Denied.

WARNER, POLEN and DAMOORGIAN, JJ„ concur.


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Cited By

  • Sovereign Healthcare OF Port ST. Lucie, LLC v. Fernandes, 132 So. 3d 855 (Fla. 4th DCA 2013)
    …entitled to a writ of certio-rari, a party must demonstrate both material injury that cannot be remedied on plenary appeal (irreparable harm) and a departure from the essential requirements of law. See Allstate Ins. Co. v. Total Rehab. & Med. Ctrs., 123 So. 3d 1162, 1163 (Fla. 4th DCA 2013). Irreparable harm has been found where, as here, a discovery order potentially requires the disclosure of personal information subject to privacy restrictions on dissemination, including names and addresses of non-parties t…
  • Abdo v. State, 144 So. 3d 594 (Fla. 2d DCA 2014)
    …, the petitioner must establish “both irreparable harm, further defined as a material injury that cannot be remedied on plenary review, and a departure from the essential requirements of the law.” Allstate Ins. Co. v. Total Rehab & Med. Ctrs., Inc., 123 So. 3d 1162, 1163 (Fla. 4th DCA 2013). The trial court’s order in this case meets the irreparable harm prong of our analysis, as it would make available to the public the recording Mr. Abdo seeks to protect as private pursuant to chapter 934, and the harm could…
  • Int'l House OF Pancakes (Ihop) v. Robinson, 124 So. 3d 1004 (Fla. 4th DCA 2013)

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